An employee is an employee, regardless of his or her right to be present in the United States and work here. The Fair Labor Standards Act (
Thus, even illegal immigrants who were hourly employees can sue for back pay if their employers didn’t pay at least minimum wage and overtime.
Recent case: Mr. Clean Laundry employed Jaqueline Galdames, Guilermo Osario and Ivonne Galdames to wash, dry, press and fold linens and clothing. Osario also repaired the laundry equipment.
When they learned that they might not have been paid properly, the three sued under the FLSA. The company tried to force the employees to prove they were legally entitled to work in the United States and asked the court to throw out the case if they couldn’t prove their legal status.
The court refused to do either. It said the employees’ immigration status, whether legal or not, was irrelevant to whether the employer had paid them less than they were entitled to receive under the law. (Galdames, et al., v. N&D Investment Corp., No. 08-20472, SD FL, 2008)
Final note: Of course, employers that discover that an employee isn’t legally eligible to work in the country aren’t required to retain that employee. In fact, doing so is illegal. If you find an employee is not legally eligible to work, consult your attorney right away.
Your attorney can also get you up to speed on the current status of the U.S. Department of Homeland Security’s No-Match enforcement program, which is intended to help employers sort out whether applicants are legally eligible to work.
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